Green Building Law

Once upon a time there was a voluntary, market-driven green building rating system called LEED®. In accordance with the intent of its drafters at the U.S. Green Building Council, it allowed developers to evaluate the feasibility of pursuing a third-party green building certification for a particular project based on a standard set of prerequisites and credits and then make an informed decision about whether or not follow the green brick road and design and develop accordingly. Along comes one municipality after another that decides that a voluntary market-based incentive to build certified green buildings is not enough. While many in the building industry cringed at the thought of mandatory LEED regulations for many reasons, they had little idea that it could actually get worse. Case in point: San Francisco’s mandate of LEED on acid for redevelopment projects.

Chief District Judge Martha Vazquez of United States District Court for the District of New Mexico issued an order back on Friday granting a preliminary injunction in favor of the plaintiffs in AHRI et al. v. City of Albuquerque. The injunction bars the enforcement of the city’s Energy Conservation Code, which the plaintiffs claim is preempted by federal regulation, pending the outcome of the lawsuit. I thought a portion of Vazquez’ 24-page written opinion was particularly interesting in light of much of our commentary on state- and local-level green building legislation here at gbNYC. “The city’s goals [in enacting the disputed code] are laudable,” Vazaquez wrote, “[u]nfortunately, the drafters of the code were unaware of the long-standing federal statutes governing the energy efficiency of certain HVAC and water heating products.”

I did not attend West Coast Green last week, but was pleased to see that the conference included a panel discussion about the emerging legal risks associated with building green, titled “Packing a Parachute: Practices that Minimize Risk and Prompt Best Use of Green Features.” Some of the panelists’ remarks resonated particularly salient in light of recent posts here at gbNYC, particularly with respect to how green projects are marketed, as well as our presentation of the country’s first green building litigation. With respect to green building contracts, the panel suggested that there is no “magic green paragraph,” and stressed that documents need to be tailored for the particular circumstances of each individual green project. We noted the same in the context of the Shaw Development v. Southern Builders case, pointing out that “the critical lesson from the lawsuit is that there is no one-size-fits-all form agreement for a green construction project,” particularly in the current regulatory climate where mandates and incentives vary in every jurisdiction.

As you may know, the USGBC recently accepted public comments on proposed amendments to its certified wood credit. The purpose of the effort is to establish “a clear set of metrics, proposed as the USGBC Forest Certification System Benchmark, that any forest certification system must meet in order to be recognized within LEED.” Only Forest Stewardship Council-certified wood products are currently eligible under LEED. Earlier this year, Toronto-based construction consultant and gbNYC reader Leslie Marshall led a research team and evaluated various green building rating systems. His team’s report, “Certified Wood and the Impact of LEED,” looked closely at the Canadian market and attempted to quantify most aspects of stakeholder experiences with specific rating systems, including LEED. Recently, Mr. Leslie wrote a letter to USGBC requesting that it release certain data related to the credit in order to assist the timber industry in assessing the merits of the proposed amendments; to date, the letter (reprinted below the jump) has gone unanswered.

The Clifton Park-Halfmoon Public Library, just to the northeast of Schenectady, recently earned formal LEED certification from USGBC. The 55,000-square-foot project was designed by architects Woodard Connor Gillies & Seleman of Albany and opened to the public back in December of 2006. NYSERDA served as a technical advisor on the project, which participated in the New York Energy $mart New Construction Program, and reviewed the proposed energy-saving features of the building proposed by the design team, which included high-efficiency windows, additional insulation, efficient lighting with occupancy control, efficient HVAC systems, and a digitally controlled building management system.